Communications Security and Surveillance Act Undermines the Rule of Law

Communications Security and Surveillance Act Undermines the Rule of Law
United Daily News editorial (Taipei, Taiwan, ROC)
A Translation
July 17, 2014

Summary: The Legislative Yuan rationalized its intervention in the Wang Ker influence peddling scandal by arguing that the Special Investigation Unit and President Ma committed too many procedural errors. But the Communications Security and Surveillance Act concerns national law and public safety. It turns justice on its head. The only thing it is doing is hurting Taiwan.

Full Text Below:

The new "Communications Security and Surveillance Act" has been in effect for only two weeks. But it has already created difficulties for criminal prosecutors and police investigators. Even police emergency response personnel have run up against brick walls and found themselves unable to act. The new law will be difficult to enforce and represents faulty legislation. Ruling and opposition legislators acted recklessly during the Wang Ker influence peddling scandal. In order to exact revenge upon the Special Investigation Unit, they indiscriminately amended the law. They made it easier to commit crimes. Even worse, they made it harder to protect the rights of decent citizens.

The Tainan City Police Department recently received an emergency call. A chronically ill senior citizen ran away from home. His family sought police assistance locating his whereabouts. But according to the newly implemented Communications Security and Surveillance Act, the police may not access his phone records, or locate him via his mobile phone. They were required to first submit a written request to a judge, between 9:00 am and 5:00 pm. The judge failed to respond. All the police and the man's family could do was to send out email alerts. Eventually they found him, late at night, burning charcoal in a car. The police are concerned that if the law is not amended future rescue attempts could face similar delays.

As everyone knows, the intent of the Communications Security and Surveillance Act was to help Wang Jin-pyng and Ker Chien-ming evade prosecution during lost year's Ma vs. Wang political struggle. The legislature underwent major mobilization to exact revenge upon the Special Investigation Unit for wire-tapping Wang and Ker's conversations. Ruling and opposition party legislators colluded to overhaul the provisions of the Communications Security and Surveillance Act, to put an end to "all you can eat cases." They sharply limited prosecutorial latitude in wire-tapping. They imposed far more stringent requirements. Unless the crime was a felony, police could no longer access phone records. This move ostensibly protected human rights and citizen privacy. In fact it merely increased the number of hoops crime prosecutors and police investigators had to jump through. In effect, it provided a safety net for criminals. It even tied the hands and feet of police when responding to emergencies.

Law enforcement and judicial authorities were aware of the potential impact even before the Legislative Yuan amended the law. In particular, they were aware of the many new restrictions on the investigative process. These included cumbersome procedures before initiating investigations or obtaining wire-taps. Jurisdiction was limited to "one person, one case." The motive was to obstruct investigations. The result was to protect criminals. But many legislators were consumed by "anti-Ma" hatred. They turned a deaf ear to law enforcement. Therefore something seldom seen happened. Ruling and opposition party legislators worked hand in glove. They co-authored an amendment to the Communications Security and Surveillance Act that abused their power, undermined the rule of law, and harmed the public. Sure enough, as soon as the new law went into effect, its defects were immeidately obvious.

The general response to the new Communications Security and Surveillance Act may contribute to an increase in crime. One. Article XI states that only the most serious offenses qualify -- those that call for a minimum three year sentence. Only then can one ask a judge for access to communication records. As a result, many cases affecting the public interest, such as missing persons, fraud, and theft, will probably remain unsolved, seriously undermining order and harming the public.

Two. The "one person, one case" limitation on wire-taps is unreasonable. Many crimes are committed by groups, including conspiracies. Official collusion with business involves many people. The Communications Security and Surveillance Act stipulates that if prosecutors and police intercept information about another case, that information must submitted to a judge for approval within seven days. Only then can it be used in evidence. Violators are subject to three years imprisonment. In other words, if a prosecutor investigates a drug trafficking case, and his wire-tap undovers a murder, it cannot be used in evidence unless it is reported in a timely manner. The investigators may even be subject to prosecution. Such legislation protects criminals while tying the hands of law enforcement. How can it possibly increase public safety or protect the public interest? 

Three. The new law overestimates the probability of abuse of power by prosecutors and police and underestimates the consequences of negligence on the part of judges. Last year Taichung police investigated the murder of female college student named Chen. Four wiretap requests were rejected. The result was a six month long delay before the murder was solved. In the previously mentioned case, people in Tainan asked police to locate their father. The court was slow to respond. In fact, when the Communications Security and Surveillance Act was being amended, judges dismissed as many as 30% of investigators' wiretap requests. This could lead to a lower solution rate for criminal cases, including of bribery, fraud, and emergency rescue. Such cases could become insoluble.

Admittedly, prosecutors and police sometimes abuse wiretaps. They are sometimes sloppy and engage in false prosecution. They sometimes violate the law. When they do, executive and judicial agencies should punish them. The legislative branch should amend the laws to regulate them. But the amending of the Communications Security and Surveillance Act was a legislative hatchet job. It was nothing more than a flaunting of their authority. That was why they included Article 32, which states that "The Legislative Yuan shall send representatives to monitor wire-tapping agencies." The legislature clearly granted itself the authority to intervene in the criminal justice process. How can the public possibly accept this?

The Legislative Yuan rationalized its intervention in the Wang Ker influence peddling scandal by arguing that the Special Investigation Unit and President Ma committed too many procedural errors. But the Communications Security and Surveillance Act concerns national law and public safety. It turns justice on its head. The only thing it is doing is hurting Taiwan.

《通保法》傷害法治，關說案後遺症無窮
【聯合報╱社論】
2014.07.17 03:02 am

新版《通訊保障及監察法》甫上路半個月，除造成檢警偵辦犯罪的困難，連警方回應民眾緊急求助，都因動輒撞上法律銅牆而寸步難行。一項法令剛出爐即窒礙難行，反映了立法品質之低劣；顯示當初朝野立委在王柯關說案掀波時一味蠻幹，為了「修理」特偵組而濫行修法設置偵察關卡，除將助長犯罪，也將法修到難以保護善良百姓的地步。

台南市警方最近接獲民眾報案，一名老先生因久病厭世離家，家屬請求警方緊急協助尋找其下落。但根據新公布實施的《通保法》，警方無權調閱電話通聯紀錄，無法透過手機定位獲知其所在位置，須先提出書面聲請請求法官授權。從上午九時等到下午五時，法官仍未回覆；警方只能動用警力和家屬以土法協尋，終在深夜將在車中燒炭的老者尋獲。警方擔心，此一法律障礙若不能修法解決，未來類似救援事件均將面臨時機延誤之害。

眾所皆知，《通訊保障及監察法》的修法，是去年「馬王政爭」時，立委為了幫王金平和柯建銘報遭「特偵組」監聽的一箭之仇，而大動干戈。當時，朝野立委聯手大修《通保法》條文，為杜絕「一案吃到飽」，大幅限縮檢調的監聽權限，更嚴格規定除非重罪，警方不得調閱電話通聯紀錄。此舉，表面上美其名是為了「保障」民眾的人權及隱私；實質上，卻增加了檢警調偵查犯罪的層層障礙，形同在為罪犯布設安全網，連警方因應民眾緊急救援事件都綑手縛腳。

在立院修法期間，執法及司法部門均意識到新法可能對法治造成的衝擊；尤其，對偵查行動新增的諸多限制，例如聲請調閱或監聽的程序繁瑣，案件管轄以「一人一案」為限等，目的都在阻擾調查權的行使，其結果勢將演成變相的「保護罪犯」。然而，當時不少立委「反馬」情緒高漲，對於執法部門的意見充耳不聞；也因此，史上難得一見的「朝野立委合作」，卻寫下了一部「濫權、傷法、害民」的《通保法》修正案。果然，新法一上路，立即暴露出它的脆弱本質。

綜括各界反應，新版《通保法》可能助長犯罪之處包括：其一，第十一條規定「最重本刑三年以上之罪」才能向法官聲請調閱通聯紀錄，如此一來，許多與民眾權益息息相關的案件，例如失蹤、詐欺、竊盜案件等，破案機會均將因此變得極其渺茫，嚴重損及治安及民眾權益。

其二，監聽以「一人一罪一案」為限的規定不合情理，目前許多犯罪是集團型態，包括官商勾結等亦有多造涉案人；若依《通保法》規定，檢警調截獲另案資料須於七日內聲請法官認可，才能提為證據，違者可處三年以下徒刑。亦即，檢調若監聽販毒案而知悉殺人案，只因未及時申報，即無法當成證據，甚至偵查者還要被判刑。這樣的立法，對犯罪者極盡保護，對執法人員卻百般刁難，置治安與公共利益於何地？

其三，新法高估檢警調「濫權」的可能，卻輕忽法官怠忽處理的後果。去年台中警方偵辦陳姓女大學生命案，四度向法院申請監聽兇嫌均遭駁回，致使命案延誤半年多才告偵破；再如前述台南民眾請求警方協尋老父一案，法院也遲遲不作回覆。事實上，在《通保法》修法期間，法官駁回檢方聲請監聽案件已高達三成。這些，不僅可能導致犯罪案件的破案率降低，包括警方要查察賄選、協助民眾反詐騙、緊急救難，都將變成不可能的任務。

不可否認，檢警調如有濫權監聽、草率嫁禍、或踰越法律分際之舉，行政及司法部門皆應嚴予論處，立法部門也須適時修法予以規範。但從《通保法》的修正看，立委大刀亂砍，無非是要展示自己的權威，因此才會訂出第卅二條「立法院得隨時派員至執行通訊監察的機關監督」的條文。此舉，擺明是為自己預留「干預司法」的路徑，如何教民眾心服？

立法院透過政治運作把王柯關說案「合理化」，那只能怪特偵組和馬總統的處理留下太多程序瑕疵。但是，《通保法》事關國家法治與民眾安全，修到如此本末和輕重顛倒，恐怕只會貽害台灣！